Defying the Supreme Court
Details
- Publish Date:
- August 4, 2022
- Author(s):
-
- Leonhardt, David
- Source:
- The New York Times
- Related Person(s):
Summary
These developments offer a reminder about the limits of the Supreme Court’s power: Political progressives and moderates who are alarmed about the current court — the combination of its aggressiveness and the relative youth of its conservative members — have many options for confronting it.
Some options are fairly radical, like changing the size of the court or passing a law declaring any subject to be off limits from Supreme Court review (both of which, to be fair, have happened in previous centuries). Other options are more straightforward. They involve the basic tools of democratic politics: winning over public opinion and winning elections.
Larry Kramer, a former dean of Stanford Law School, argues that many progressives have made the mistake of paying relatively little attention to this strategy in recent decades. They have instead relied on courts to deliver victories for civil rights and other policies. That tactic worked under the liberal Supreme Court of the 1950s and 1960s and even sometimes under the more conservative court of recent decades. But under the current court, it will no longer work.
The founders did not design the court to be the final arbiter of American politics, anyway. At the state level, progressives still have the ability to protect abortion rights, so long as they can persuade enough voters — as happened in Kansas this week. At the federal level, Congress has more authority to defy court decisions than many people realize.
“If you want a better government, you have to actively get yourself engaged in creating it. And that you do through democratic politics if you want it to be a democracy,” Kramer recently said on Ezra Klein’s podcast. “You try and persuade, and if you do, the country follows you.”